Chand v MotorParts Traders Ltd [2014] FJMC 83; Civil Action 19.2013 (15 May 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION
Civil Action No. 19 of 2013

Avinesh Chand
Plaintiff

v

Motorparts Traders Ltd
Defendant

For Plaintiff Parshotam Lawyers
For Respondent : Neel Shivam Lawyers

Ruling

Introduction

In this matter the Defendant's have filed a Notice of Motion for stay pending appeal of a Ruling delivered by this Court dismissing a motion filed by the Defendants and awarding costs to Plaintiff in the sum of $500.00.

The Defendant's are primarily asserting that the motion was summarily dismissed by this Court on 29th Day of October 2013 and seeking stay pending an appeal to the High Court

Parties were given time to file submissions on the application before this Court. Both sides have made written submissions and have agreed to be heard by way of written submissions.

The Law on Stay
In Estate Management Services Ltd v Pagenstecher [2012] FJHC 1175, Justice Balapatabendi laid down "The principles governing the grant or refusal of a Stay Application pendipeal are well setl settled.

The principles' governing a Stay has been stated ihus lsburysbury's Laws of England (4th Ed. Vol. 37 para 696):

>"Twociplee to be bala balanced nced against each other as to whether a&#1 a Stay ocutio0;pen0;pending #160; the ap#160; should be granted: ted: first that a successful litigant should not be deprived of the fruits of this litigation, and secondly, that an appellanuld n deprof the fruitfruits of a successful ap#160;."60;."<

>

The Court considering a Stay should take into account ole following questions. They were the principles set out by the Court of Appeal and approvbsequently and apnd ap freqy in this Court. They were summarized in Natural Waters of Viti Ltd v Crystal Clel Clear Miar Mineral Waters (Fiji) Ltd Civil Ap#160;011.0th March 2005. 005. They are:

p>"(a) Whether, if no stay is granthe applicant's righ right 60;appeal will be rendered nugatory (this is not determinative). See Philip Morris (Nis (NZ) Ltd v Liggett & Myers Tobacco Z) Lt7 2 NZLR 41 (CA).

(b) Whether ther the sthe successful party will be injuriously affected by the Stay.

(c) The) The bona fides of the Applicants as to the prosecution of the appeal.

<(d) T(d) The effect on thirties.

(e) The novelty and importance of questions involved.

(f) The public interest in theeedings.

(g) The overall balance of conv convenience and the status quo."".

The Application before this Court

This Court has noted the submissions filed and arguments for and against the stay application before this Court.

The Defendant's stay application arises from a decision of this Court dismissing the Motion after a hearing and written submissions on the issues canvassed in the motion. This Court notes that it did not summarily dismiss the motion as is being understood by the Defendant's. Initially the motion was dismissed by this Court for non-appearance by the Defendant's Counsel. The Defendants refilled the motion and the matter was heard and then the Court gave its ruling. This Court further informed the Parties that the pleadings could address the issues and the substantive matter should proceed.

Having noted the principles on stay in relation to this application this Court finds that the substantive matter should proceed immediately, which is without delay, there is no prejudice to the Defendant if stay is not granted as per the motion filed by the Defendant.

Orders

(a) Motion is dismissed
(b) Stay refused.
(c) No order as to Costs.

Chaitanya Lakshman
Resident Magistrate

15th May 2014